service of Marsolino, an adverse party. Plaintiff argues that the accountant-client relationship between Hanna and Plaintiff from 1964 to 1968 confers this privilege and prevents disclosure of anything learned by Hanna during the period arising from this relationship.
Marsolino has made no objection to the disclosure. Its counsel at the deposition brought forth testimony showing that all the information sought and all the information used to prepare the summaries sought to be introduced as exhibits in the discovery deposition had been compiled from Marsolino records which Hanna had prepared in his capacity as Marsolino's accountant, that none of the information or exhibits came from any material or records placed in his possession by Plaintiff.
The Pennsylvania Statute provides that "Except by permission of the client". At all times here Marsolino was Hanna's client. Marsolino raises no objection. The source of the information is Marsolino's books that Hanna, as Marsolino's accountant, prepared for Marsolino. The testimony and exhibits elicited did not relate to Hanna's employment by Plaintiff.
Plaintiff claims that Defendants are attempting to exploit the relationship between it and Hanna. We gather that Plaintiff feels that Defendants, by these inquiries, are attempting to take unfair advantage of Plaintiff's investment in Hanna's services. But Hanna testified that he has a charge of $4,470.32 for the development of the information and the summaries prepared which are now in controversy and that he intends to bill Marsolino for this work.
We conclude that if there is any confidential privilege to the information sought, that privilege is Marsolino's, and Marsolino raises no objection.
Plaintiff has cited one case involving the physician-patient privilege, Alexander v. Knight, 197 Pa. Super. 79, 177 A. 2d 142 , where the trial court, whose opinion was affirmed per curiam, by way of dicta criticized plaintiff's physician for rendering a report on plaintiff's condition to an investigating physician employed by defendant for a fee of $50 without his patient's consent. The trial court did not feel that this was significant in the case, but nevertheless felt that this was not a very nice thing for the plaintiff's physician to do, and so stated. The court did say, however, that "The doctor, of course, owes a duty to conscience to speak the truth; he need, however, speak only at the proper time." This statement recognizes the exception that when a plaintiff brings an action for personal injuries he is deemed to consent to the material testimony of any physician who has prescribed for or treated him for such injury, as provided by the Pennsylvania statute, 28 P.S. § 328.
The C.P.A. Law contains no specific exceptions for lawsuits, but we find the rationale of such exceptions to a claim of privilege asserted in a lawsuit compelling. See 8 Wigmore on Evidence, § 2389 [1961 ed.].
The Courts have indicated that the waiver is broad:
"'It seems that when a party seeks relief in a court of law, he must be held to have waived any privilege, which he otherwise might have had, to withhold testimony required by the rules of pleading or evidence as a basis for such relief. . . . He must either give up his privilege to withhold pertinent evidence or he must abandon his suit for relief.'" (emphasis supplied)